Copyright Policy

The information here serves as a guideline and is not intended as legal advice. Refer to appropriate copyright law and University policies for full information. If you have a specific legal question pertaining to copyright law, you should contact the Office of General Counsel at (202) 885-3285.

Several texts have been useful in preparation of this resource and they are cited in the resources section at the end of the document. Material used was done so with permission and further use of this document is subject to the licenses and copyright in those original works.

What is covered by copyright?

United States Copyright Law protects authors' original "works of authorship" that are fixed in a tangible medium.

First, a work of authorship must be "original" in order to qualify for copyright protection. This means that the author must have engaged in some intellectual endeavor on his/her own and the work must show a minimal amount of creativity.

The following are not protected by copyright law because there is no minimal amount of creativity: facts; words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.

Second, the work of authorship must be fixed in a tangible form. A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

Ideas alone are not protected, but their forms of expression are covered.

Works, for purposes of copyright protection, include the following categories:

Literary works

Musical works

Dramatic works

Pantomimes and choreography

Pictorial, graphic and sculptural works

Motion pictures and other audiovisual works

Sound recordings

Architectural works

Works created on or after January 1, 1978 are covered automatically whether or not they have a copyright notice. In addition, an author has the option of registering his/her work with the U.S. Copyright Office. Copyright Registration gives certain legal advantages to authors who register their works.

Example: A student's web page, if original, is automatically covered by copyright.

What rights are covered by copyright and how do they affect use of copyrighted materials in courses?

Under U.S. Copyright Law, the copyright owner (who may be either the author/creator or his/her transferee) has the exclusive right to do or authorize the following:

To reproduce their works in copies or phonorecords

To use their works to create new derivative works

To distribute copies or phonorecords to the public by sale or transfer of ownership

To perform publicly literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works

In the case of sound recordings, to perform the work publicly by means of a digital audio transmission

NOTES:

If your publisher holds the copyright to your work, you may not use it freely except under the exceptions and fair use clauses described below.

Many of the activities conducted in the classroom encompass these exclusive rights. For example, in the course of teaching a professor may photocopy articles, upload web sites, copy software, share computer files, create musical performances or perhaps have a public showing of a film. Generally, one must obtain permission from the copyright owner in order to use one of the exclusive rights. Fortunately, copyright law provides some exceptions to this general rule that allow educators to make use of materials in these ways, provided they follow certain guidelines or criteria.

How long does copyright protection last?

Due to many revisions of U.S. Copyright Law, the date of publication and creation is important in informing you whether or not each work is copyright protected. In general, it is more likely than not that:

Works, published before 1923, are in the public domain which means that their copyright protection has expired.

Works, created on or after January 1, 1978, are copyright protected for the life of the author plus 70 years.

Works, published between 1923 and December 31, 1977, are likely copyright protected provided that the published works had proper notice of copyright. Those published works without a proper notice of copyright are in the public domain which means that their copyright protection has expired.

Works of corporate authorship, created on or after January 1, 1978, are copyright protected for either 95 years from publication or 120 years from creation, whichever is shorter.

For a more comprehensive explanation as to how long copyright protection lasts, please refer to the charts in the resources section below for additional details including copyright terms for unpublished materials.

NOTES:

In most circumstances, Post 1923 Published Works that are out of print are still covered by copyright and if their use is beyond the scope of fair use or other exemptions (see below), permission should be obtained.

How can I use copyrighted materials in the classroom?

Use lawfully acquired copies of materials, (e.g., items you or the institution purchased, obtained through interlibrary loan, or licensed). Do not use pirated or illegally copied materials.

Even if you are permitted to use the works, include copyright notices on any copyrighted materials you use.

In general, it is a good idea to use only the amount of a work that is needed to achieve your pedagogical goals.

The SPECIFICS:

Besides obtaining the copyright owner's permission to use the work, the U.S Copyright Law provides two options that allow professors to use materials in the classroom:

110(1) Exemption: There is a special exemption in the U.S. Copyright Law that applies to face-to-face teaching. This is a situation where the professor is physically present in a classroom or similar place devoted to instruction and is using the materials in the context of a discrete class session. Under § 110(1), faculty and students may only perform or display – but not reproduce or distribute – any copyrighted work in the course of face-to-face teaching activities in a classroom, without seeking permission. If this provision doesn't meet your needs, you can see if a case can be made for fair use (see below).

Examples of classroom performances of non-dramatic music or literary works:

Group of students sings an arrangement of a Beetles' song in class as part of the lesson plan. Professor does a reading from a chapter of a novel in class as part of the lesson plan.

Fair Use: Materials may be used for teaching (including creation of multiple copies) as well as for purposes such as criticism, comment, and news reporting by applying a four factor analysis. You must weigh each factor and assess the overall impact of your use. Meeting a single factor will not suffice; similarly, failing one does not necessary mean you cannot use fair use.

The four factors to consider are:

Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

Non commercial and educational uses are favored over commercial ones. Transformative uses (e.g., those that use works to create something new) are favored. Fair use of a work intended for an educational market such as a workbook may be less favored.

Example of transformative use: Professor includes portions of copyright works in a multimedia presentation for a class.

Nature of the work. Factual works are favored in fair use decisions over use of highly creative works. In general, published works are favored over unpublished works.

Amount and substantiality of the portion used in relation to the work as a whole. Use is more likely to be considered fair for small quantities, where the portion used is not significant to the entire work, and where the amount is appropriate for the intended educational purpose.

Effect of the use upon the potential market for or value of the work. Factors favoring fair use are use of lawfully acquired or purchased copies of the original works, a small number of copies made, no similar product is marketed by copyright holder, and there is a lack of a licensing mechanism. Factors arguing against fair use are repeated long term use and making materials widely available as on the Web.

Fair Use is not a blanket exemption to copyright law.

Rather, it must be judged on a case by case basis. In an effort to simplify the process of determining whether a classroom use was a fair one, a set of Guidelines for Classroom Copying of Books and Periodicals was agreed upon by a group of authors and publishing organizations.

In addition, you should review the University's "Policy on Reproduction of Copyrighted Works" as to using copyrighted works.

Scenario

A professor rents a DVD of the film Hotel Rwanda from a local video store to show in her class on African History. The disc is labeled For Home Use Only. Is this use permitted?

This use falls within the 110(1) exemption of the U.S. Copyright Law that permits a classroom viewing in the context of a class session. Public performances of the video to a campus club would not be covered. Showing the same DVD to the class by "streaming" it through a Blackboard site is not covered by this exemption and certain criteria would need to be met to deliver the material in that fashion.

If I make a case for fair use and the owner disagrees can I still be held liable?

Although you still may be liable for actual damages and profits, there is a good faith fair use defense provision in the law that may remit only statutory damages even if the copying was deemed not fair use provided that the person (who is an employee or agent of a non-profit educational institution acting within the scope of his/her employment) copying material reasonably believed that he or she was following fair use. Therefore, it is a good idea to keep a written record of your rationale in making a fair use decision. Our fair use checklist is available to assist in that process.

Is it legal to use course packets for my class and if so how can I do that?

Course packets are compilations of articles, chapters and other texts that are bound together for use in a particular class. Publishers are concerned that use of course packs could undermine sales of textbooks and they rely on permissions for their income. Court cases have ruled that course packs require permission, but none of the cases have involved single non-profit educational institutions.

Permission of the copyright holders must be obtained for materials to be included in course packets, if the materials are not in the public domain and their use does not meet criteria for fair use. The Office of Faculty and Administrative Support Services can obtain the copyright permissions for you.

Allmaterials must be properly cited on the first page of the distributed, copied work. Please include author, publisher, book/text/source name, year, and page(s). If it is an article that was copied from a larger source book, include the source book citation and the name of the copied article. A copyright notice from the source should also be included.

Under no circumstances may a course packet include an entire book or journal just for the purpose of avoiding purchase of the books. Consumables such as workbooks, lab manuals or standardized texts also may not be included in course packets.

NOTE:According to the University's "Policy on Reproduction of Copyrighted Works", any faculty member may make multiple copies of an article for use in class and distribute them to students independently. Similarly, the library will place individual copies of articles on reserve for student consultation. Use of the same article for subsequent semesters requires the copyright owner's permission.

How can I use copyrighted materials on MyWCL?

The BASICS:

Use legally acquired or purchased copies of materials and always include copyright notices and remind students that copyrighted works should not be copied and redistributed to others.

Generally restrict MyWCL access to those students enrolled.

Block access to materials after the course has ended.

When possible, it is preferable to link to electronic material that is already licensed by the library rather than make digital copies.

Digital materials are covered by copyright law and fair use also applies in this environment.

The SPECIFICS:

Besides obtaining the copyright owner's permission to use the work, you can select between one of two provisions in the law that allow use of copyrighted materials on MyWCL:

You can make a claim of fair use OR

You can use the 2002 Technology, Education, and Copyright Harmonization Act (TEACH Act) provisions which were developed to address distance education. The TEACH Act permits displays and performances of copyrighted works to be transmitted and used for instructional purposes, without permission of the copyright owner, if several conditions are met. In order to qualify you must be an accredited nonprofit educational institution or governmental body. In order to transmit, a work needs to used:

By, at the direction of, or under the actual supervision of an instructor

as an integral part of a class session

as part of systematic mediated instructional activities

directly related and of material assistance to the teaching content.

The transmission shall be made solely for and reception limited to (as technologically feasible) students enrolled in the course, and technology that reasonably prevents retention in accessible form for longer than a class session, and technology that prevents unauthorized further dissemination in accessible form, and no interference with copyright owner's technological measures that prevent such retention and dissemination.

Provided that the certain above conditions are met, the TEACH Act allows you to:

transmit a performance of non-dramatic literary or musical works or reasonable and limited portions of any other work, including portions of dramatic literary works (e.g., Shakespeare on film) or musical works (e.g., a performance of West Side Story).

Display any work in an amount comparable to that typically displayed in the course of a live classroom session.

Use the work if it is directly related to the teaching content and limited to those enrolled.

The work used is not a textbook, course pack or other material typically purchased or acquired by students for their personal retention; nor is it a work that is marketed primarily for performance or display as part of a digitally transmitted mediated instructional activity.

A professor wants to make a DVD of an entire film available on her MyWCL course. Does she need to get permission?

Most films fall under the category of dramatic literary or musical works and the TEACH Act specifies use of limited portions of these works. As long as the MyWCL site were restricted to the class and the film was directly related to the class content, a segment that would be comparable to what one would show in an individual class session would probably fall within the TEACH guidelines. If however, she wants to show the entire film by streaming it through Blackboard, she must either make a fair use case or get permission. Looking at the four factors one can see that factors in favor of fair use are the educational use and impact on the market (assuming this is a one time use and that the faculty member or institution has already purchased the DVD). Factors weighing against fair use would be the nature of the work which is highly creative and the amount used. In this case, it may be prudent to obtain permission from the copyright holder.

Scenario

A professor has scanned several hundred images from various texts to represent Western culture and politics during a particular period of history. He wants to leave them on MyWCL throughout the semester so that his students can consult them as they wish in relationship to the texts they are reading.

Although the works probably would be limited to those enrolled in this professor's class and seem relevant to the teaching content of the course, aspects of this use would be difficult to justify under the TEACH Act. The amount of the work used goes beyond that which could be construed as a single classroom session and the individual images are full works. Fair Use may apply in this case, but if the works were used in multiple semesters, permissions may be required. Linking to images available in licensed databases could be a safer choice.

How can I use MyWCL for reserve readings?

You may legally scan portions of journals or books and place them on your web site or on reserve through MyWCL if:

Copies of the materials are legally acquired and restricted through technological measures to those enrolled in class;

Always include a copyright notice as it appears on the document;

The scanning is limited to portions and is not used to replace purchase of materials. In the case of journal articles you can probably make a fair use case for an entire article, but not every article from a single issue of a journal; AND

You remove the scanned images at the end of the semester or required class period.

In most cases you will need to seek permission if you intend to use large amounts of works (e.g., entire books) or use materials over many semesters. Some materials, including most library databases that are explicitly licensed for web use by AU may be used in their entirety and for repeated semesters.

May I keep the same articles on MyWCL each semester?

Except for works in the public domain or those that are licensed, a four-factor fair use analysis is required for materials you plan to reuse on MyWCL for subsequent semesters. Although a repeated use of such material could be considered fair use, it can have a cumulative effect on markets of the original work. It is safer to obtain permission for such items if they will be used repeatedly. The Office of Faculty and Administrative Support Services can provide this service. Please contact the Copy Center at 202-274-4120
or copycenter@wcl.american.edu for more information.

May I let my students download articles that I have placed on MyWCL?

In general this is not a good idea because it would be very easy for them to redistribute the electronic documents. You should include a warning in the materials notifying students that the materials are made available through fair use or the TEACH Act and further copying and redistributing the material is a violation of the copyright law.

Are there any problems with linking to web pages on MyWCL?

It appears that there is no copyright infringement in linking to another site.

There may be cases where it is prudent to link to a top site or home page rather than link deeply into a site. In the latter case you may be skirting important information about copyright, uses, advertising or other information that the copyright holder wants the user of its site to encounter. Similarly, when frames are used a user may be directed to another site that appears in the frame of the original site, potentially creating a problem of commercial competition if the user cannot tell who created the original information.

Are there any special requirements for using art, photographs or images?

Display of visual works in the classroom is covered by the classroom exemption of the U.S. Copyright Law, in section 110(1) and the TEACH Act has provisions to allow display through electronic courseware in an amount typically displayed in the course of a classroom session. Uses beyond these would require application of fair use or copyright permission.

In general, artistic works have a high level of protection under copyright law and it is more challenging to make a fair use case for their use. In the case of photographs, copyright may reside with several owners including the photographer, the creator of an original work that is being photographed, and the subject of the image.

In the classroom it will often be difficult to limit the amount of an artistic work (i.e., a portion of a picture or painting) used to achieve a fair use. In general, if using the whole work supports your teaching goals and the other fair use factors are controlled for fair use, then it may be appropriate to use the entire work in a class.

Photographs of existing works in the public domain are generally covered by copyright unless they are exact reproductions of the public domain work. Two dimensional photographs of three dimensional works such as sculpture usually involve more creativity and are therefore more stringently protected by copyright.

Some art works are covered by a special protection called the Visual Artist Rights Act of 1990.

Specifically, copyright law provides some artists of visual works the moral rights of attribution and integrity. This mostly applies to museum paintings and other limited edition fine arts intended for exhibition. One of the artist's rights "prohibits the modification and distortion of works prejudicial to the artist's honor or reputation."

It is unclear whether manipulating pictures through digital technologies is a copyright infringement, except in instances where it is used to create parodies which are considered fair use. Moral rights and defamation issues may also be implicated.

Scenario

A professor has assigned his students to use images of photographs or art works from DC museums to create a poster about a book they have read for the course. Students can use multiple images or use image software to manipulate the images. Is this use permissible?

Although the students would be creating derivative works, this application may fall within fair use assuming that no further use will be made of the material beyond the classroom (e.g., the material is not going to be posted to a public web site or displayed at an exhibit). To acknowledge the moral rights of the artist, it would be appropriate for the students to document in writing the nature of the changes they made to the original works and to cite the ownership and description of those works.

May I use copyrighted materials on a class web site without obtaining permission?

The same provisions apply here as apply through MyWCL. You should limit access to works used under the fair use provisions of the U.S. Copyright Law or the TEACH Act by password or other technological means. If you use materials for subsequent semesters you should obtain permission.

May I give my students assignments to create web sites projects that use copyrighted materials?

Most student use will fall under fair use provided access to their site was restricted to those enrolled in the class and access to the site lasts only for that class semester. If students anticipate using their projects beyond the classroom, it is a good idea to obtain permission at the time of creation.

You should remind students when they use materials from the Internet that:

materials found on the Internet may be protected by copyright even if there is no copyright notice.

they should use proper citations. For assistance, students may be referred from the library website to the citation style guides.

they should protect the integrity of copyrighted works.

May I email articles to my students?

This is not the best idea. You have no way of controlling "downstream" uses and the practice may be considered distribution, a right reserved by the copyright holder. A better choice is to link to the article from your MyWCL or secure web page.

If my use doesn't fall under fair use or an exemption, how do I obtain permission to use copyrighted works in the classroom?

You will need to identify the copyright holder and request permission for all the specific purposes you intend. Keep written documentation for all requests and responses. Some works, especially those in the arts and music often have multiple layers of copyright. You can contact the authors or creators directly or you can go through a clearinghouse.

Jones & Bartlett: They have a form that is required for submitting copyright permission requests and it can be found on this page: http://www.jbpub.com/contact/permissions.htm. It must then be faxed to Deborah Byrne at (978) 443-8000.

If the author or publisher denies permission to use the material, or demands conditions you are not willing to meet, it is safer to not use the material. Although you may still claim fair use in using a particular work, the publisher or other copyright holder may investigate to determine whether the material is being used in defiance of its demand.

If you do not receive a reply to your request within a reasonable time, or if the request is returned as undeliverable, the material should not be used. The U.S. Copyright Office can assist you in finding the name and address of the most recent copyright holder if you still want to obtain permission. There is a fee for using its service. If the Copyright Office is not able to help you, you have made a good faith effort to obtain permission and you will have protection in the event of a dispute with the copyright holder.

What resources are available to help me resolve copyright problems?

American University Offices

Office of General Counsel, x3285

University Library, x3236 or 3203

The library can provide guidance on university practices and policies and general copyright information.

The Glushko-Samuelson Intellectual Property Law Clinic of the Washington College of Law, x4148